Obscenity
Overview Obscenity is the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity “was outside the protection intended for speech and press.”Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote: “There is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment.” Id. at 514. Consequently, obscenity may be banned simply because a legislature concludes that banning it protects “the social interest in order and morality.” Id. at 485. No actual harm, let alone compelling governmental interest, need be shown in order to ban it. Obscenity is not synonymous with pornography, as most pornography is not legally obscene; i.e., most pornography is protected by the First Amendment. To be obscene, pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.” Miller v. California, 413 U.S. 15, 27 (1973). The "Miller" Test The Supreme Court has created a three-part test, known as the "Miller" test, to determine whether a work is obscene. Under the "Miller" test, many courts have upheld state restrictions on obscene materials.See Recreational Developments of Phoenix, Inc. v. City of Phoenix, 83 F.Supp.2d 1072, 1095 (D. Ariz. 1999) (denying plaintiff’s motion to enjoin an obscenity ordinance because the state law mirrored the "Miller" test); County of Kenosha v. C&S Management, Inc., 223 Wis.2d 373 (1999) (upholding the constitutionality of a Wisconsin law prohibiting the sale of obscene material based on the "Miller" test). The Supreme Court has allowed one exception to the rule that obscenity is not protected by the First Amendment. In Stanley v. Georgia, the Court held that “mere private possession of obscene material” is protected. The Court wrote: Subsequently, however, the Supreme Court rejected the claim that under Stanley there is a constitutional right to provide obscene material for private use,United States v. Reidel, 402 U.S. 351 (1971). or to acquire it for private use.United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973). The right to possess obscene material does not imply the right to provide or acquire it, because the right to possess it “reflects no more than . . . the law’s ‘solicitude to protect the privacies of the life within home.’”''Id.'' at 127. Federal statutes Two powers enumerated in Article I, Section 8 of the U.S. Constitution give Congress the power to enact statutes banning obscenity: the power “To regulate Commerce with foreign Nations, and among the several States,” and the power “To establish Post Offices and post Roads.” Thus, Congress may enact statutes, provided they do not contravene any provision of the Constitution, that regulate obscenity that crosses state or national boundaries, is imported or exported, or is mailed. Federal statutes, in addition to making it a crime to mail obscenity or to transport or receive it in interstate or foreign commerce, provide for criminal and civil forfeiture of real and personal property used in making obscenity pornography, and of the profits of obscenity — in some instances even when they were already used to pay a third party. In addition, obscenity crimes are included among the predicate offenses that may give rise to a violation of the federal Racketeer Influenced and Corrupt Organizations Act (RICO). Congress has enacted three federal statutes designed to protect minors from sexual material posted on the Internet: * The Communications Decency Act of 1996 made it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail) to make an obscene or indecent communication to a minor, or knowingly to use an interactive computer service to transmit an obscene communication to anyone or an indecent communication to a minor. In 1997 the U.S. Supreme Court held the inclusion of “indecent” communications in this statute unconstitutional. * In 1998, Congress, in response, enacted the less-broad Child Online Protection Act (COPA), but it was also held unconstitutional and never took effect. * The Children's Internet Protection Act (CIPA), enacted in 2000, requires schools and libraries that accept federal funds to purchase computers or Internet access to block or filter obscenity, child pornography, and, with respect to minors, material that is “harmful to minors.” Filters may be disabled, however, “for bona fide research or other lawful purpose.” In 2003, the Supreme Court held CIPA constitutional. Applicability to non-sexual content The Supreme Court has carefully limited obscenity to sexual content. Although the Court has wrestled with the precise formulation of the legal test by which it classifies obscene material, it has consistently addressed obscenity with reference to sex-based material. Such was the case in Roth v. United States''354 U.S. 476, 485-87 (1957). and ''Memoirs v. Massachusetts,''383 U.S. 413 (1966). which modified ''Roth. The Court in Miller v. California expressly cabined the First Amendment concept of obscenity in terms of sexual material.413 U.S. 15, 24 (1973) ("We now confine the permissible scope of such regulation to works which depict or describe sexual conduct.") Circuit courts have resisted attempts to broaden obscenity to cover violent material as well as sexually-explicit material. In American Amusement Machine Ass'n v. Kendrick, which involved a videogame restriction that mixed the regulation of sexual and violent material, the Seventh Circuit discussed why "violence and obscenity are distinct categories of objectionable depiction," explaining that obscenity is concerned with "offensiveness," whereas ordinances like the one at issue in Kendrick are concerned with conduct or harm.244 F.3d 572, 574-75 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001). In Video Software Dealers Association v. Webster, the Eighth Circuit held that videos "that contain[] violence but not depictions or descriptions of sexual conduct cannot be obscene."968 F.2d 684, 688 (8th Cir. 1992) ("Obscenity . . . encompasses only expression that 'depicts or describes sexual conduct'" (citing Miller, 413 U.S. at 24)). Likewise, in Eclipse Enterprises, Inc. v. Gullota, the Second Circuit declined to place trading cards which depicted heinous crime that was allegedly harmful to minors in the category of unprotected obscenity.134 F.3d 63, 66-68 (2d Cir. 1997). Further, in James v. Meow Media, Inc., the Sixth Circuit, in discussing excessively violent movies and video game material, "declined to extend its obscenity jurisprudence to violent, instead of sexually explicit, material."300 F.3d 683, 698 (6th Cir. 2002). In Ginsberg v. New York,''390 U.S. 629 (1968). the Supreme Court stated: Though not the clearest of disclaimers, this language telegraphs that the Court's concern in Ginsberg was with the relationship between the state and minors with respect to a certain subject matter — "sex material" as it relates to the interests of minors. References See also * Obscenity and Indecency: Constitutional Principles and Federal Statutes * Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments * Obscenity, Child Pornography, and Indecency: Recent Developments and Pending Issues * Pornography * "Roth" standard Category:First Amendment Category:Free speech Category:Obscenity